Leonel Sandoval v. Eric Holder, Jr.

Filing

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONEL SANDOVAL, AKA Lione
Sandoval,
Petitioner,
No. 13-71784
Agency No.
A090-808-120
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 8, 2016
Portland, Oregon
Filed January 27, 2017
Amended August 8, 2017
Before: M. Margaret McKeown, William A. Fletcher
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
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SANDOVAL V. SESSIONS
SUMMARY*
Immigration
The panel filed an amended opinion granting Leonel
Sandoval’s petition for review of the Board of Immigration
Appeals’ decision finding him ineligible for cancellation of
removal based on his conviction for delivery of a controlled
substance under Oregon Revised Statutes § 475.992(1)(a),
and remanded.
The panel held that the Oregon law is not a categorical
aggravated felony because its definition of “delivery”
includes mere solicitation, and the federal Controlled
Substances Act does not punish soliciting delivery of
controlled substances. The panel further held that the
modified categorical approach does not apply because the
Oregon law is indivisible with respect to whether an
“attempt” is accomplished by solicitation.
Noting that the previously published version of this
opinion also considered whether the Oregon law was an
“illicit trafficking” aggravated felony, the panel declined to
consider that issue because the BIA had not considered it.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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COUNSEL
Brian Patrick Conry (argued), Portland, Oregon, for
Petitioner.
Song E. Park (argued), Bryan S. Beier, and Patrick J. Glen,
Senior Litigation Counsel; Cindy S. Ferrier, Assistant
Director; Chad A. Readler, Acting Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
FISHER, Circuit Judge:
Sandoval was convicted of delivery of a controlled
substance under Oregon Revised Statutes § 475.992(1)(a).1
Oregon law permits conviction for delivery under this statute
based on mere solicitation. Because the Controlled
Substances Act does not punish soliciting delivery of
controlled substances, § 475.992(1)(a) cannot be a categorical
match to an aggravated felony under 8 U.S.C.
§ 1227(a)(2)(A)(iii). Further, because § 475.992(1)(a) is
indivisible, the modified categorical approach does not apply.
Therefore, we grant Sandoval’s petition and remand for
further proceedings.
1
Section 475.992(1)(a) is currently codified at Oregon Revised
Statutes § 475.752.
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I
Leonel Sandoval moved to the United States from Mexico
when he was nine years old. He adjusted to lawful permanent
resident status in 1990. His wife of over 26 years and two
children are United States citizens.
In 1998, Sandoval was convicted of delivery of a
controlled substance under Oregon law. The indictment
identified the controlled substance as heroin. He performed
community service at a forest project and was placed on
probation for two years. Since then, he has not been
convicted of any other criminal activity.2
Twelve years later, the government instituted removal
proceedings against him. It alleged two grounds for removal
based on Sandoval’s 1998 conviction: (1) that the conviction
was an aggravated felony and (2) that the conviction was
related to a controlled substance.
See 8 U.S.C.
§ 1227(a)(2)(A)(iii), (B)(i). Under the second charge,
Sandoval could seek cancellation of removal based on his
long-standing residence and family ties in the United States.
But the first charge made him ineligible for such relief. See
id. § 1229b(a)(3). Accordingly, Sandoval argued the
government had failed to offer clear and convincing evidence
he was convicted of an aggravated felony because Oregon’s
statute is broader than a federal controlled substance offense
given that it punishes solicitation in addition to actual and
attempted delivery. The IJ and BIA rejected this argument,
2
Sandoval was recently pardoned for his conviction, but we do not
consider whether or how the pardon affects Sandoval’s ability to obtain
relief from deportation.
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concluded he was ineligible for cancellation of removal and
ordered him removed.
Sandoval timely petitioned for review. We have
jurisdiction and review Sandoval’s petition de novo. See
8 U.S.C. § 1252(a)(2)(D); Daas v. Holder, 620 F.3d 1050,
1053 (9th Cir. 2010); see also Coronado-Durazo v. INS,
123 F.3d 1322, 1324 (9th Cir. 1997). We do not defer to an
agency’s interpretations of state law or provisions of the
federal criminal code. See Hoang v. Holder, 641 F.3d 1157,
1161 (9th Cir. 2011).
II
To determine whether a state criminal conviction is an
aggravated felony, we must follow the “categorical
approach.” See Descamps v. United States, 133 S. Ct. 2276,
2281 (2013). Under the categorical approach, we “compare
the elements of the statute forming the basis of the
[petitioner’s] conviction with the elements of the ‘generic’
crime – i.e., the offense as commonly understood.” Id. Only
if the elements in the petitioner’s statute of conviction “are
the same as, or narrower than, those of the generic offense”
is the petitioner’s conviction a categorical match. Id.
Under the categorical approach, we first determine the
definition of the generic offense – here, an aggravated felony.
This requires us to navigate a “maze of statutory crossreferences.” Carachuri-Rosendo v. Holder, 560 U.S. 563,
567 (2010). We start with the definition of “aggravated
felony” as used in 8 U.S.C. § 1101(a)(43).
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The term “aggravated felony” includes any “drug
trafficking crime.”3 8 U.S.C. § 1101(a)(43)(B). Only
felonies qualify as “drug trafficking crime[s].” See Lopez v.
Gonzales, 549 U.S. 47, 55, 60 (2006); see also CarachuriRosendo, 560 U.S. at 581–82. A “felony” means an offense
punishable by more than one year under federal law. See 18
U.S.C. § 3559(a)(5); see also Moncrieffe v. Holder, 133 S. Ct.
1678, 1683 (2013); Lopez, 549 U.S. at 60 (“In sum, we hold
that a state offense constitutes a ‘felony punishable under the
Controlled Substances Act’ only if it proscribes conduct
punishable as a felony under that federal law.”).4
Drug trafficking crimes include felonies punishable under
the Controlled Substances Act.
See 8 U.S.C.
§ 1101(a)(43)(B); 18 U.S.C. § 924(c)(2). Because heroin is
a federally controlled substance, see 8 U.S.C.
§ 1101(a)(43)(B); 21 U.S.C. §§ 802(6), 812(c)(sched.
I)(b)(10), knowingly distributing or possessing with intent to
distribute heroin violates the Controlled Substances Act, see
21 U.S.C. § 841(a)(1). Doing so is a felony, i.e., a crime
punishable by more than one year of imprisonment under
federal law. See 21 U.S.C. § 841(b)(1)(C). Accordingly,
3
The previously published version of this opinion also considered
whether § 475.992(1)(a) was an “illicit trafficking” offense under 8 U.S.C.
§ 1101(a)(43)(B), which is also an aggravated felony. See Sandoval v.
Yates, 847 F.3d 697, 699, 701 (9th Cir. 2017). Because the BIA did not
consider this issue, we decline to do so here.
4
The Controlled Substances Act defines “felony” as “any Federal or
State offense classified by applicable Federal or State law as a felony.”
21 U.S.C. § 802(13). But 18 U.S.C. § 3559(a) controls for immigration
purposes. See Moncrieffe, 133 S. Ct. at 1683; see also CarachuriRosendo, 560 U.S. at 567.
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because distributing heroin is a drug trafficking crime, we
must consider the meaning of “distribute.”
The term “distribute” means “deliver.” See 21 U.S.C.
§ 802(11). And “deliver” means “the actual, constructive, or
attempted transfer of a controlled substance or a listed
chemical, whether or not there exists an agency relationship.”
Id. § 802(8). Accordingly, one may commit a drug
trafficking crime by actually delivering, attempting to deliver
or possessing with intent to deliver heroin.
Because Sandoval argues the Oregon statute under which
he was convicted criminalizes solicitation, we must next
determine whether the meaning of “attempt” under the
Controlled Substances Act includes solicitation. The
Controlled Substances Act does not define the term
“attempt.” See 21 U.S.C. §§ 802, 846. Nevertheless, mere
solicitation of controlled substances does not constitute
“attempted” delivery under the Controlled Substances Act.
See United States v. Rivera-Sanchez, 247 F.3d 905, 908–09
(9th Cir. 2001) (en banc), superseded on other grounds as
stated in Guerrero-Silva v. Holder, 599 F.3d 1090, 1092 (9th
Cir. 2010); see also Leyva-Licea v. INS, 187 F.3d 1147, 1150
(9th Cir. 1999); Coronado-Durazo, 123 F.3d at 1325–26.
The Controlled Substances Act “does not mention
solicitation,” unlike “attempt” and “conspiracy.” RiveraSanchez, 247 F.3d at 909 (quoting Leyva-Licea, 187 F.3d at
1150); see also Coronado-Durazo, 123 F.3d at 1325;
21 U.S.C. § 846 (prescribing felony punishment for
attempting or conspiring to deliver a controlled substance).
Although strongly corroborative of intent to commit a crime,
offering to deliver a controlled substance does not cross the
line between preparation and attempt for the purposes of the
Controlled Substances Act. See Rivera-Sanchez, 247 F.3d at
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908–09; see also United States v. Yossunthorn, 167 F.3d
1267, 1272–73 (9th Cir. 1999) (ordering drugs from a known
supplier was not an attempt when there was no agreement as
to essential details regarding the transaction).
Therefore, to qualify as an aggravated felony, a drug
trafficking crime for delivery of heroin must satisfy the
following elements: (1) knowing or intentional (2) delivery,
attempted delivery, conspiracy to deliver or possession with
intent to deliver (3) heroin. This offense may not be
accomplished by merely soliciting delivery – i.e., offering
delivery – of heroin. The next question is whether
Sandoval’s Oregon statute of conviction matches this federal
definition.
Sandoval was convicted of delivering a controlled
substance. His indictment identifies the controlled substance
as heroin and cites Oregon Revised Statutes § 475.992. The
only portion of that statute proscribing delivery of heroin
states:
[I]t is unlawful for any person to manufacture
or deliver a controlled substance. Any person
who violates this subsection with respect to:
(a) A controlled substance in Schedule I, is
guilty of a . . . felony.
Or. Rev. Stat. § 475.992(1)(a) (1998). The term “deliver”
means “the actual, constructive or attempted transfer” of a
controlled substance from one person to another. Id.
§ 475.005(8) (1998). “A person is guilty of an attempt to
commit a crime when the person intentionally engages in
conduct which constitutes a substantial step toward
commission of the crime.” Id. § 161.405(1) (1998).
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Under Oregon law, solicitation – even without possession
– is a “substantial step toward committing the crime of
attempted delivery under ORS 475.992(1).” State v. Sargent,
822 P.2d 726, 728 (Or. Ct. App. 1991); see also State v.
Lawrence, 217 P.3d 1084, 1086 (Or. Ct. App. 2009). And,
taking a substantial step toward committing the crime of
attempted delivery by solicitation “constitutes delivery” in
Oregon. Sargent, 822 P.2d at 728.
Sargent relied on State v. Self, 706 P.2d 975 (Or. Ct. App.
1985), in concluding that mere solicitation supported a
conviction for delivery of controlled substances under
§ 475.992(1)(a). See Sargent, 822 P.2d at 728. In Self, the
defendant was convicted under Oregon’s generic solicitation
statute, Oregon Revised Statutes § 161.435. See 706 P.2d at
977. The court set out the specific facts:
At the time of the commission of the instant
offense, defendant was serving a sentence in
the Lane County Jail. While at that facility,
he telephoned one Webb, whose foster
daughter he knew, in an attempt to obtain
Webb’s help in securing $2000 for the release
from jail of a third party, Brown. Defendant
made about six phone calls, the first two to the
foster daughter. During the fourth call, when
asked by Webb about collateral, defendant for
the first time said that, after his release,
Brown would go to two places in Eugene and
get the money to repay Webb. Then, as a
further reward, Webb and Brown would go to
San Francisco, where Brown would obtain
and give Webb five kilos of cocaine.
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Id. Self was convicted of “solicitation of attempted delivery
of an illegal substance.” Id. The appellate court affirmed.
See id.
That the appellate court in Sargent said the facts of Self
were “illustrative” is telling. See Sargent, 822 F.2d at 728.
Self did not possess or even offer to deliver the cocaine. See
Self, 706 P.2d at 977. Instead, he tried to arrange the release
of a third party, promising that same third party would obtain
cocaine in exchange for assistance in the third party’s release.
See id. There was no agreement to accomplish this scheme.
See id. Further, the court recited no facts indicating the third
party’s willingness to perform the promised criminal acts.
See id. Nevertheless, the appellate court in Sargent pointed
to Self as the “illustrative” case supporting its conclusion that
“delivery” under § 475.992(1)(a) includes solicitation.
Sargent, 822 P.2d at 728. This holding has not been
disturbed by later Oregon case law.
For example, in State v. Pollock, 73 P.3d 297 (Or. Ct.
App. 2003), aff’d on other grounds, 102 P.3d 684 (Or. 2004)
the court reversed a pretrial order suppressing evidence
against a defendant charged under § 475.992 for delivery of
a controlled substance. In Pollock, an officer had been told
by witnesses that the defendant had tried to sell them ecstasy,
a controlled substance. See id. at 298. The trial court found
that “an offer to sell a controlled substance is, standing alone,
insufficient to establish probable cause to believe that an
attempted transfer has occurred.” Id. at 299. The appellate
court reversed:
We conclude that offering to sell a controlled
substance constitutes a substantial step
toward a completed transfer of that substance.
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As the court explained in State v. Walters,
311 Or. 80, 85, 804 P.2d 1164, cert. den.,
501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d
979 (1991), “‘to be a substantial step the act
must be “strongly corroborative of the actor’s
criminal purpose,”’ . . . i.e., [the] defendant’s
conduct must (1) advance the criminal
purpose charged and (2) provide some
verification of the existence of that purpose.”
(Citations omitted.) An offer to sell a
controlled substance meets the two-part test
the court identified in Walters.
It
“substantially advances” the goal of
completing the transaction. See id. An offer
to sell goes beyond mere preparation and
shows a commitment to completing the
transfer if the offer is accepted. Additionally,
the offer “provide[s] some verification of the
existence of [defendant’s criminal] purpose.”
See id. Taking defendant at his word, he
would have immediately transferred the
ecstasy to Andersen and Carver if they had
accepted his offer. At a minimum, the officer
reasonably could conclude from defendant’s
offer to sell a controlled substance that it was
more likely than not that he had intentionally
taken a substantial step toward the completed
transfer of that substance.
Id. at 300 (alterations in original) (emphases added). Thus,
under Oregon law, the offer to deliver a controlled substance
is enough to complete a substantial step toward an intended
transfer, i.e., offering to deliver a controlled substance is an
attempt under Oregon law. See id. But the mere offer to
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deliver a controlled substance – i.e., the act of soliciting
delivery – is not a drug trafficking crime under the Controlled
Substances Act. See Rivera-Sanchez, 247 F.3d at 908–09.
Accordingly, a statute that punishes the mere offer to deliver
a controlled substance is not an aggravated felony under the
categorical approach. See id. at 909.
The government contends a conviction under
§ 475.992(1)(a) requires more than simply offering to deliver
a controlled substance. It relies on State v. Johnson, 123 P.3d
304 (Or. Ct. App. 2005). We are not persuaded.
In Johnson, the defendant was convicted of both
attempted murder and solicitation to commit murder. See id.
at 306. During phone conversations and in online chats, the
defendant asked a friend to kill both his wife and daughter,
suggesting methods for the murders and offering to make sure
the friend would “never want for anything” if she did as
asked. See id. Because the state had no evidence of a
“concrete” plan outlined for the murder of his wife and child,
the defendant argued the evidence was insufficient to support
a solicitation or attempt conviction. See id. at 307–08. The
appellate court disagreed and affirmed his conviction on
appeal. See id. at 310. The government contends Johnson
stands for the proposition that mere solicitation – simply
offering to deliver a controlled substance – is not enough to
convict under § 475.992(1)(a). We do not read it that
broadly.
First, Johnson did not involve a controlled substance
offense under Oregon law. See id. at 305. Instead, it dealt
with attempted murder and solicitation to commit murder.
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See id. at 306.5 Thus, it is not clear whether Johnson is
applicable here.
Second, even if Johnson is applicable, the standards the
court outlined match those in Sargent:
In State v. Sargent . . ., we held that, “if a
person solicits another to engage in conduct
constituting an element of the crime of
delivery, e.g., to provide to the person a
controlled substance for the purpose of
distribution to third parties, the person has
attempted delivery . . . .” We see no reason to
depart from that reasoning here, and we
decline to hold that solicitation of a knowing
agent is categorically disqualified as a
“substantial step” under ORS 161.405.
Rather, as the statute plainly states,
solicitation requires a “substantial step.”
Solicitation of a guilty person qualifies as a
“substantial step” if, under the facts, the
defendant’s actions exceed mere preparation,
advance the criminal purpose charged, and
provide some verification of the existence of
that purpose.
Id. at 309–10 (footnotes omitted). The appellate court’s
reasoning in Johnson was that solicitation is both strong
evidence of criminal purpose and a substantial step toward
accomplishing that purpose under Sargent. See id. Nothing
in Johnson requires a defendant to take some affirmative act
5
We do not consider whether solicitation to commit murder is an
aggravated felony.
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to further the goal of the requested criminal behavior or
specify how the crime would take place. See id. at 308
(“[The] details of how the crime is to be committed need not
be specified.”).6 Johnson does not limit Sargent in any way.
In sum, the government’s argument fails to acknowledge
Sargent’s and Pollock’s explicit statements that a conviction
under § 475.992(1)(a) may be supported by merely offering
to deliver controlled substances. See Sargent, 822 P.2d at
728 (“We conclude that, if a person solicits another to engage
in conduct constituting an element of the crime of delivery
. . ., the person has taken a substantial step toward committing
the crime of attempted delivery . . . [and] [u]nder that statute,
the conduct constitutes delivery.”); Pollock, 73 P.3d at 300
(“We conclude that offering to sell a controlled substance
constitutes a substantial step toward a completed transfer of
that substance.”). As we have repeatedly held, solicitation of
controlled substances is not an aggravated felony under the
Controlled Substances Act. See, e.g., Rivera-Sanchez,
247 F.3d at 909.
Because Oregon’s definition of “delivery” includes
solicitation, § 475.992(1)(a) is not a categorical match to a
“drug trafficking crime.” Therefore, Sandoval’s conviction
6
This was exemplified in State ex rel. Juvenile Department of Union
County v. Krieger, 33 P.3d 351, 352 (Or. Ct. App. 2001), in which the
Oregon appellate court affirmed “without discussion” a conviction for
solicitation. There, a minor asked several students to help him “blow up
or shoot up” their school. See id. All of these requests were rejected and
the minor “never pursued any further discussion” or provided “specific
plans to carry out the shooting or bombing.” Id. Nevertheless, the
minor’s conviction for solicitation was summarily affirmed by the court.
See id.
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for delivery of heroin does not qualify as an aggravated
felony under the categorical approach.
III
Our inquiry does not end here, however. We must next
address whether the modified categorical approach may be
used to determine whether Sandoval’s conviction qualifies as
an aggravated felony.
Only divisible statutes are subject to the modified
categorical approach. See Lopez-Valencia v. Lynch, 798 F.3d
863, 867–69 (9th Cir. 2015) (holding Descamps divisibility
analysis is applicable in the immigration context).
“[D]ivisibility hinges on whether the jury must unanimously
agree on the fact critical to the federal statute.” Id. at 868–69.
Such critical facts are “elements,” which are the “things the
‘prosecution must prove to sustain a conviction.’” Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016) (quoting Black’s
Law Dictionary 634 (10th ed. 2014)).
To resolve the question of whether statutory alternatives
are either elements or means, a court looks first to the statute
itself and then to the case law interpreting it. See id. at
2256–57; see also Almanza-Arenas v. Lynch, 815 F.3d 469,
479–82 (9th Cir. 2016) (en banc). If state law fails to answer
the question, a court may look to Shepard documents, which
may be helpful in determining divisibility. See Mathis,
136 S. Ct. at 2256–57; see also Descamps, 133 S. Ct. at 2284
(citing Shepard v. United States, 544 U.S. 13, 25–26 (2005)).
But if the statute, case law and Shepard documents fail to
speak plainly as to whether statutory alternatives are elements
instead of means, the statute is indivisible and the modified
categorical approach has no application. See Mathis,
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136 S. Ct. at 2257; see also In re Chairez-Castrejon, 26 I. &
N. Dec. 819, 819–20 (BIA 2016) (holding Descamps and
Mathis divisibility analysis “applies in immigration
proceedings nationwide to the same extent that it applies in
criminal sentencing proceedings”).
The government does not argue § 475.992(1)(a) is
divisible. Instead, it urges us to remand to the BIA to
determine whether § 475.992 is divisible. When an agency
does not reach an issue for which it is owed Chevron
deference, “the proper course, except in rare circumstances,
is to remand to the agency for additional investigation or
explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002)
(internal quotation marks omitted); see also Gonzales v.
Thomas, 547 U.S. 183, 186 (2006). But interpreting criminal
law is not a matter placed primarily in agency hands. See
Hoang, 641 F.3d at 1161. We owe no deference to the
decision of the BIA on this issue and there is no reason to
remand for the BIA to decide the issue of divisibility in the
first instance. See Rivera v. Lynch, 816 F.3d 1064, 1078 n.13
(9th Cir. 2016) (“The question of [a state criminal statute’s]
divisibility ‘requires neither factual development nor agency
expertise’ and is properly analyzed by this court.” (quoting
Chavez-Solis v. Lynch, 803 F.3d 1004, 1012 n.6 (9th Cir.
2015))).
Section 475.992(1)(a) does not list “solicitation” as an
alternative method of accomplishing delivery. Nor is
solicitation included in the express statutory definition of
“deliver.” See id. § 475.005(8). The inclusion of solicitation
as a means of accomplishing delivery is a judicial
interpretation of the word “attempt.” Therefore, this is a
circumstance where the divisibility analysis is
“straightforward” because § 475.992(1)(a) “sets out a single
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(or ‘indivisible’) set of elements to define a single crime.”
Mathis, 136 S. Ct. at 2248. Solicitation is not an enumerated
statutory alternative to delivery or attempt but is, instead,
included within the meaning of those listed alternatives. See
Sargent, 822 P.2d at 728. The statute is therefore indivisible
with respect to whether an “attempt” is accomplished by
solicitation.
The government argues we have previously held
§ 475.992(1)(a) could qualify as an aggravated felony under
the modified categorical approach, citing United States v.
Chavaria-Angel, 323 F.3d 1172, 1177–78 (9th Cir. 2003). In
that case, we affirmed the district court’s conclusion that the
defendant’s § 475.992 offense for delivery of a controlled
substance was an aggravated felony based on a review of
uncertified Oregon state records. See id. at 1174, 1177–78.
However, the decision rested on the method rejected in
Descamps, 133 S. Ct. at 2282–83, 2286–91, and applied the
modified categorical approach without performing any
divisibility analysis. See Chavaria-Angel, 323 F.3d at
1177–78. The analysis improperly focused on what the
defendant actually did as opposed to the crime of which the
defendant was convicted. Compare id. (focusing on the
evidence supporting a finding the defendant sold controlled
substances), with Descamps, 133 S. Ct. at 2287 (calling this
method a “modified factual” approach, which turns an
“elements-based inquiry into an evidence-based one”). The
opinion did not consider whether a jury, when convicting a
defendant of delivery of a controlled substance, must
unanimously choose between alternative methods of delivery,
including solicitation. See Chavaria-Angel, 323 F.3d at
1177–78. Descamps and Mathis require these inquiries. See
Mathis, 136 S. Ct. at 2256–57; Descamps, 133 S. Ct. at
2286–91. Chavaria-Angel, therefore, is not controlling here.
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To summarize, § 475.992(1)(a) is overbroad in its
definition of “delivery,” and the modified categorical
approach may not be applied because § 475.992(1)(a) is
indivisible with respect to whether an “attempt” is
accomplished by solicitation.
Therefore, we hold a
conviction for delivering heroin under § 475.992(1)(a) is not
an aggravated felony. Sandoval’s petition is granted.
GRANTED AND REMANDED.

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